Judge: Elaine W. Mandel, Case: 23SMCV05402, Date: 2024-03-20 Tentative Ruling

Case Number: 23SMCV05402    Hearing Date: March 20, 2024    Dept: P

Tentative Ruling

Sokolow v. Rexford Flats, LLC et al., Case No. 23SMCV05402

Hearing Date March 20, 2024

Defendants Power Brokers, Beverly Hills Fine Homes & Arbid’s Demurrer to Complaint

Defendants Rexford’s Motion to Strike Damages

Plaintiff alleges defendant Mehrdad and defendants Rexford Flats and Bedford Flats’ property manager entered her apartment, causing her dog to escape and be struck by a car. Plaintiff alleges Mehrdad was acting in her capacity as a real estate agent working for defendants Arbid and Power Brokers, Inc.

Defendants Power Brokers International, Beverly Hills Fine Homes and Arbid (collectively “PBI”) demur, as do defendants Rexford Flats, Rexford 52 and Mehrdad (collectively “Rexford”). Rexford also moves to strike special and punitive damages.

Defendants PBI Demurrer

Negligence

The elements of a cause of action for negligence are (1) duty, (2) breach, and (3) causation. Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.

PBI argue they owed plaintiff no duty of care because they were not parties to her lease and did not negligently allow the dog to escape. The complaint alleges Mehrdad was acting within the scope of employment by Power Brokers and Arbid. Complaint ¶¶5, 7. On demurrer, these allegations must be treated as true. C&H Foods, Co. v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062. The employment allegations create a basis for vicarious liability against Power Brokers and Arbid, regardless of whether they directly caused the dog to escape.

Additionally, the duty plaintiff alleges Mehrdad breached is not solely based on her failure to give sufficient notice of entry (a duty arising from the landlord-tenant relationship) but on allegations that she negligently allowed the dog to escape, despite being warned the dog was scared of strangers (a general duty of care). Complaint ¶¶36-39. This alleged duty is not based on a prior landlord-tenant relationship, so does not serve as a basis for demurrer.  

Finally, the complaint alleges BHFH is Power Brokers’ alter ego but does not allege sufficient facts showing that treating the entities as separate would “sanction a fraud, promote injustice, or cause an inequitable result.” Misik v. D’Arco (2011) 197 Cal.App.4th 1065, 1073. The complaint merely concludes “it would be unfair to plaintiff if the acts set forth in this complaint were treated as those of Power Brokers alone.” Complaint ¶9. This is insufficiently specific. Plaintiff must set forth specific facts.

OVERRULED as to Power Brokers and Arbid; SUSTAINED with ten days leave to amend as to defendant BHFH.

Negligent Hiring, Supervision and Retention

An employer is liable for negligent hiring, supervision and retention if it “knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.” Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.

PBI argues the complaint does not allege Mehrdad was unfit and incompetent to perform the work for which she was hired or that PBI knew she was unfit. The court agrees. The complaint alleges “Ms. Mehrdad was unfit and incompetent to perform the work for which she was hired,” because “her real estate salesperson’s license was previously suspended in 2021 and 2022.” Complaint ¶¶34, 43, 44. The complaint does not identify the “particular risk or hazard” created by hiring Mehrdad, nor how that hazard materialized. Plaintiff must clarify how Mehrdad’s alleged incompetence as a realtor created a specific risk that she would allow a dog to escape an apartment. SUSTAINED with ten days leave to amend.

Trespass/Trespass to Chattels

PBI argues these causes of action are subject to demurrer because the complaint does not allege they entered Sokolow’s unit or interfered with her use or possession of the dog. As above, while the complaint does not allege the PBI defendants did these things directly, it does allege they did them vicariously via the actions of their employee, Mehrdad. E.g., Complaint ¶¶22-30. For purposes of pleading, this is sufficient to survive demurrer. OVERRULED.

Breach of the Covenant of Quiet Enjoyment

The covenant of quiet enjoyment is implied in all leases, protecting lessee from any “act or omission by the lessor, which interferes with the lessee’s right to use and enjoy the premises for the purposes contemplated by the lease.” Avalon Pacific-Santa Ana, L.P. v. HD Supply Repair & Remodel, LLC (2011) 192 Cal.App.4th 1183, 1191.

PBI argues the lease states “[l]andlord and [t]enant are not represented by any real estate brokers[.]” Complaint exh. A. ¶41. The court agrees. The lease agreement does not name PBI as parties, nor does it indicate Mehrdad was their agent. Absent a landlord-tenant relationship, there is no covenant of quiet enjoyment. This cause of action fails as to the PBI defendants. SUSTAINED without leave to amend.

Rexford Defendants

Negligence

Defendants Rexford Flats and Rexford 52 argue the complaint does not allege they were aware of the circumstances leading to the alleged negligent conduct of defendant Mehrdad such that they had an opportunity to eliminate any potential danger. Nor has plaintiff established facts the Rexford defendants had control over the actions leading to the alleged negligence.

As plaintiff notes, Rexford’s argument is based on the [incorrect] assumption that the negligence cause of action arises from premises liability. The negligence cause of action does not allege premises liability; it is based on allegations that Mehrdad herself breached a general duty of care by entering the apartment without permission, allowing the dog to escape. Complaint ¶¶24-30, 37. It seeks to hold the Rexford defendants liable on a respondeat superior/vicarious liability theory, alleging Rexford employed Mehrdad, and she was acting within the scope of that employment when she allowed the dog to escape. Complaint ¶¶7, 22. These allegations are sufficient on demurrer. OVERRULED.

Trespass/Trespass to Chattels

Rexford demurs to the trespass causes of action, arguing “[p]laintiff has not established that the Rexford defendants, in their capacity strictly as landlords of the building either entered or caused a third person to enter her apartment.” Demurrer pg. 6. As above, plaintiff pleaded respondeat superior liability; she alleges Mehrdad, in her capacity as Rexford’s property manager, entered the apartment without permission and caused the death of the dog. Complaint ¶¶21-30.

In reply, Rexford argues the complaint makes clear Mehrdad was not working in her capacity as a property manager but was acting as a real estate agent, since she was showing plaintiff’s unit to a prospective tenant when the dog escaped. It is not obvious on the face of the complaint that showing the unit falls outside the scope of her employment as apartment manager. For purposes of pleading, the court must treat allegations that she was working in both capacities as true. OVERRULED.

Rexford’s Motion to Strike

Special Damages (Emotional Distress)

Generally, absent physical injury, a cause of action for negligence based on property damage cannot give rise to an award of special damages for emotional distress. Lili Butler-Rupp, et al. v. Lourdeaux (2005) 134 Cal.App.4th 1220, 1228. Emotional distress damages are available when a plaintiff alleges trespass to chattels based on intentional injury to a pet. Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590.

Rexford argues emotional distress damages are not available for damage to personal property (the dog). Emotional distress damages are not available via the negligence claim. Under Lili Butler-Rupp, plaintiff suffered no physical injury, so cannot recover for emotional distress. Plotnik does not allow recovery of emotional distress damages for trespass to chattel. Plaintiff did not allege intentional injury to the dog, only that Mehrdad opened the door and allowed the dog to escape, knowing such an outcome was likely. This is not analogous to Plotnik, where defendant intentionally struck a dog with a baseball bat. GRANTED.

Punitive Damages

Punitive damages are available “[f]or wrongful injuries to animals being subjects of property, committed willfully or by gross negligence, in disregard of humanity[.]” Cal. Civ. Code §3340.

Rexford argues Sokolow did not adequately allege malice or outrageous conduct justifying punitive damages. A reasonable finder of fact could conclude Mehrdad acted with “gross negligence” by entering the apartment, despite being explicitly warned not to by plaintiff, and allowing the dog to escape, as plaintiff warned it might. This is sufficient to support a punitive damages award under §3340 on demurrer. DENIED.